Summary
In Gyani v Great Neck Med. Ctr. (35 Misc 3d 278 [Sup Ct, Nassau County 2012]), the court held that a physician who was a named defendant could be subpoenaed by serving the attorney for the co-defendant hospital because the physician had been an employee of the hospital at the time of the alleged malpractice.
Summary of this case from Barabash v. CastellanoOpinion
2012-01-11
Gurpreet GYANI and Raminder S. Oberoi, Plaintiffs, v. GREAT NECK MEDICAL GROUP, Lori Cohen, M.D., North Shore University Hospital–Manhasset, Bradley J. Cohen, D.O., Nilaya Bhawsar, D.O., Dana Leifer, M.D., Efran Hussain, M.D., Gary P. Kaplan, M.D., New York Neurologic Associates, Slavina Gardella, M.D., John Chelico, M.D., Christine Napolitano, D.O., Defendants.
The Gucciardo Law Firm, New York City, for Plaintiff. Martin Clearwater & Bell, LLP, East Meadow, Giesler, Gabriele & Marano, Garden City, for Defendant.
The Gucciardo Law Firm, New York City, for Plaintiff. Martin Clearwater & Bell, LLP, East Meadow, Giesler, Gabriele & Marano, Garden City, for Defendant.
ARTHUR M. DIAMOND, J.
Plaintiffs' have moved in limine for a court order directing the defendant treating physician, Dr. Nilaya Bhawsar, D.O. to appear and testify on plaintiff's direct case, or be precluded from testifying on his own case. Both parties have submitted memorandum of law as requested by the court.
Dr. Bhawsar was the treating physician resident who treated plaintiff in the emergency room at North Shore University Hospital–Manhasset (herein after referred to as NSUH) on the date of the alleged medical malpractice, and is also a named party defendant in this case. Dr. Bhawsar resides in New Jersey and plaintiff has not served a subpoena upon him in New York. Defense counsel indicates that Dr. Bhawsar will testify on behalf of the defendants, but will not be produced at plaintiffs' request to appear to testify on plaintiff's direct case.
Plaintiffs seek a court order to compel Dr. Bhawsar to testify on their direct case in accordance with the Court of Appeals case of McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 255 N.Y.S.2d 65, 203 N.E.2d 469. Plaintiffs contend that the court can provide plaintiff the requested relief based upon the court's own inherent authority. Defendants contend that they do not have to produce the defendant Dr. Bhawsar because he is outside the jurisdiction of the court and is not amenable by service of a trial subpoena personally under CPLR § 2303, and the Judiciary Law § 2–b.
While a subpoena must be served in the state of New York, it does not expressly require the in-state physical presence of the person served at the time of service. As the Appellate Division of the First Department stated in Coutts Bank Ltd. v. Anatian, 275 A.D.2d 609, 611, 713 N.Y.S.2d 45, “Judiciary Law 2–b is concerned not with where a witness is located, but rather where service is made. Our courts have not been hesitant extending the reach of service outside the State if they have a presence in the State and service is effectuated in the State.” Therefore, where a person is a party to an action pending in New York, a trial ‘subpoena can be personally served upon the parties counsel pursuant to CPLR § 308(5) because the court has jurisdiction over the party who has appeared and answered in the pending litigation by virtue of the party submitting himself to the jurisdiction of the court. ( See, Coutts Bank (Switzerland) Ltd. v. Anatian, supra, at 612–613, 713 N.Y.S.2d 45; Campbell v. New York City Health & Hospitals Corporation, 2002 WL 34675319 [Supreme Court, Bronx County 2002, J. McKeon] ).
Since defendant's counsel is capable of being served personally pursuant to CPLR § 308(5) within New York State, the need to do so is obviated by the more recent statute CPLR § 2303—a which allows service upon counsel pursuant to CPLR § 2103. Therefore, if plaintiff seeks to produce defendant Dr. Bhawsar, he can do so by serving defendant's Bhawsar's counsel under CPLR § 2103(a).
Furthermore, the court finds that plaintiff has the option of serving a subpoena upon the defendant North Shore University Hospital–Manhasset by serving its counsel under CPLR § 2303–a which hospital is domiciled in New York to compel North Shore to produce Dr. Bhawsar to testify on plaintiff's case. The Court of Appeals has held that a corporation amenable to the jurisdiction of New York court may be subpoenaed to produce a person under its control that has knowledge of the transaction at issue. ( See, Standard Fruit & Steamship Co. v. Waterfront Commission, 43 N.Y.2d 11, 400 N.Y.S.2d 732, 371 N.E.2d 453 [1977]; Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR § 2302–a, p. 70). Even though Dr. Bhawsar is not currently an employee of NSUH, he is a party defendant who was the treating physician and resident—employee of the hospital at the time of the alleged malpractice. Defendant is insured under the same insurance policy of the hospital NSUH, and has the same attorney as NSUH which was provided by the insurance carrier. Dr. Bhawsar is required to cooperate and testify at the request of NSUH as a condition of being insured, or the insurance carrier can disclaim coverage. Accordingly, NSUH has control over Dr. Bhawsar even though he is an out of state resident, and NSUH can be compelled to produce him. ( See, 23/23 Communications Corp. v. General Motors Corp., 172 Misc.2d 821, 823–24, 660 N.Y.S.2d 296). Therefore, plaintiff can also serve defendant NSUH's counsel with a subpoena pursuant to CPLR § 2302–a. This constitutes the decision and order of this Court.